Judge: Lisa R. Jaskol, Case: 20STCV48344, Date: 2023-07-11 Tentative Ruling
Case Number: 20STCV48344 Hearing Date: July 11, 2023 Dept: 28
Having considered the moving
and supplemental papers, the Court rules as follows.
BACKGROUND
On December 18, 2020,
Plaintiffs Ernesto Licon Aguirre (“Aguirre”), Rosario Licon (“Licon”) and Cesar
Armando Lopez (“Lopez”) filed this action against Defendants Concepcion H.
Garcia (“Garcia”), Los Angeles County Sheriff’s Department (“LASD”) and County
of Los Angeles (“County”) for motor vehicle negligence.
On February 26, 2021, Garcia
and County filed an answer.
On March 27, 2023, Garcia and
County (“Moving Defendants”) filed Motions to Compel Plaintiffs’ IMEs to be
heard on June 27, 2023. On May 8, 2023, Moving Defendants filed supplemental
papers.
On June 27, 2023, the Court
continued the hearing to July 11, 2023 to obtain a Spanish language
interpreter.
Trial is currently scheduled
for October 3, 2023.
PARTIES’ REQUESTS
Moving Defendants request
that the Court order Aguirre to attend an IME with orthopedic surgeon Thomas
Grogan, M.D., on August 2, 2023, at 9:00 a.m. at 11704 Wilshire Blvd., Suite
11710, Los Angeles, California 90025. Moving Defendants also request
sanctions against Aguirre totaling $1,200.00.
Moving Defendants request
that the Court order Licon to attend an IME with orthopedic surgeon Thomas
Grogan, M.D., on August 2, 2023, at 10:00 a.m. at 11704 Wilshire Blvd., Suite
11710, Los Angeles, California 90025. Moving Defendants also request sanctions
against Lincon totaling $1,200.00.
Moving Defendants request
that the Court order Lopez to attend an IME with orthopedic surgeon Thomas
Grogan, M.D., on August 2, 2023, at 11:00 a.m. at 11704 Wilshire Blvd., Suite
11710, Los Angeles, California 90025. Moving Defendants also request sanctions
against Lopez totaling $1,200.00.
LEGAL STANDARD
Code
of Civil Procedure section 2032.220 provides:
“(a) In any case in
which a plaintiff is seeking recovery for personal injuries, any defendant may
demand one physical examination of the plaintiff, if both of the following
conditions are satisfied:
“(1) The examination
does not include any diagnostic test or procedure that is painful, protracted,
or intrusive.
“(2) The examination is
conducted at a location within 75 miles of the residence of the examinee.
“(b) A defendant may
make a demand under this article without leave of court after that defendant
has been served or has appeared in the action, whichever occurs first.
“(c) A demand under
subdivision (a) shall specify the time, place, manner, conditions, scope, and
nature of the examination, as well as the identity and the specialty, if any,
of the physician who will perform the examination.
“(d) A physical
examination demanded under subdivision (a) shall be scheduled for a date that
is at least 30 days after service of the demand. On motion of the party
demanding the examination, the court may shorten this time.
“(e) The defendant shall
serve a copy of the demand under subdivision (a) on the plaintiff and on all
other parties who have appeared in the action.”
Code of Civil Procedure
section 2032.230 provides:
“(a) The plaintiff to
whom a demand for a physical examination under this article is directed shall
respond to the demand by a written statement that the examinee will comply with
the demand as stated, will comply with the demand as specifically modified by
the plaintiff, or will refuse, for reasons specified in the response, to submit
to the demanded physical examination.
“(b) Within 20 days
after service of the demand the plaintiff to whom the demand is directed shall
serve the original of the response to it on the defendant making the demand,
and a copy of the response on all other parties who have appeared in the
action. On motion of the defendant making the demand, the court may shorten the
time for response. On motion of the plaintiff to whom the demand is directed,
the court may extend the time for response.”
Code of Civil Procedure
section 2032.310, subdivision (a) requires a party to obtain leave of court to
obtain discovery by an additional physical exam or any mental exam. Code of
Civil Procedure section 2032.310, subdivision (b) provides that a motion shall
“specify the time, place, manner, conditions, scope, and nature of the
examination, as well as the identity and the specialty, if any, of the person
or persons who will perform the examination. The motion shall be accompanied by
a meet and confer declaration under Section 2016.040.” The court
shall grant a motion for a physical or mental examination under section
3032.310 “only for good cause shown.” (Code Civ. Proc., § 2032.320, subd.
(a).)
Code of Civil Procedure
section 2023.030, subdivision (a) provides that “[t]he court may impose a
monetary sanction ordering that one engaging in the misuse of the discovery
process, or any attorney advising that conduct, or both pay the reasonable
expenses, including attorney's fees, incurred by anyone as a result of that
conduct.” Misuse of the discovery process includes “failing to
respond or to submit to an authorized method of discovery.” (Code
Civ. Proc., §2023.010, subd. (d),)
DISCUSSION
A. Aguirre’s
IME
Aguirre alleges that, as a
result of the subject incident, he sustained injuries to his neck and low back.
Moving Defendants originally noticed Aguirre’s IME with Dr. Grogan for February
28, 2023, at 9:00 a.m. Plaintiffs’ previous attorney agreed to have Aguirre
appear for his IME, subject to certain requirements. Moving Defendants
agreed to those demands. Aguirre failed to appear for his IME.
Moving Defendants are
entitled to take Aguirre’s IME. The Court finds good cause and
grants Moving Defendants’ motion to compel Aguirre to attend his IME.
B. Lincon’s
IME
Lincon alleges that, as a
result of the subject incident, she sustained injuries to her neck, upper to
middle back, left breast and left shoulder. Moving Defendants originally
noticed Lincon’s IME with Dr. Grogan for February 28, 2023, at 10:00 a.m. Plaintiffs’
previous attorney agreed to have Lincon appear for her IME, subject to certain
requirements. Moving Defendants agreed to those demands. Lincon failed to
appear for her IME.
C. Lopez’s
IME
Lopez alleges that, as a
result of the subject incident, he sustained injuries to his neck and low back.
Moving Defendants originally noticed Lopez’s IME with Dr. Grogan for February
28, 2023, at 11:00 a.m. Plaintiffs’ previous attorney agreed to have Lopez
appear for his IME, subject to certain requirements. Moving Defendants agreed
to those demands. Lopez failed to appear for his IME.
Moving Defendants are entitled
to take Lincon’s IME. The Court finds good cause and grants Moving
Defendants’ motion to compel Lincon to attend his IME.
D. Sanctions
Moving Defendants are
entitled to sanctions against Plaintiffs because they failed to appear for
properly noticed IMEs. Moving Defendants request $1,200.00 for each
Plaintiff, based on 3 hours of attorney’s work at a rate of $400.00 per
hour. Moving Defendants state that two hours were spent drafting
each motion, and one hour is anticipated in preparing a reply.
The motions are unopposed,
are substantially similar, and will be heard concurrently. The Court awards
$250.00 in sanctions against each Plaintiff, based on 1 hour of attorney’s work
at a reasonable rate of $250.00 per hour for each motion.
CONCLUSION
Defendants Concepcion H.
Garcia and County of Los Angeles’s Motion to Compel Plaintiff
Ernesto Licon Aguirre’s Independent Medical Exam is GRANTED. Aguirre
is ordered to attend an IME with orthopedic surgeon Thomas Grogan, M.D., on
August 2, 2023, at 9:00 a.m. at 11704 Wilshire Blvd., Suite 11710, Los Angeles,
California 90025.
Defendants Concepcion H.
Garcia and County of Los Angeles’s Motion to Compel Plaintiff Rosario Licon’s Independent Medical Exam is GRANTED.
Lincon is ordered to attend an IME with orthopedic surgeon Thomas Grogan, M.D.,
on August 2, 2023, at 10:00 a.m. at 11704 Wilshire Blvd., Suite 11710, Los
Angeles, California 90025.
Defendants Concepcion H.
Garcia and County of Los Angeles’s Motion to Compel Plaintiff Cesar Armando
Lopez ‘s Independent Medical Exam is GRANTED. Lopez is ordered to attend an IME
with orthopedic surgeon Thomas Grogan, M.D., on August 2, 2023, at 11:00 a.m.
at 11704 Wilshire Blvd., Suite 11710, Los Angeles, California 90025.
Defendants Concepcion H.
Garcia and County of Los Angeles’s Request for Sanctions is GRANTED. Plaintiffs
Ernesto Licon Aguirre, Rosario Licon, and Cesar Armando Lopez are each ordered
to pay Moving Defendants $250.00 in sanctions within 30 days of the hearing on
the motion.
Moving parties are ordered to
give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.